Drake v. Bigelow
| Decision Date | 22 July 1904 |
| Citation | 100 N.W. 664,93 Minn. 112 |
| Parties | DRAKE v. BIGELOW. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; William Louis Kelly, Judge.
Action by Alexander M. Drake against George Bigelow. From a judgment for defendant, plaintiff appeals. Affirmed.
1. A note made payable in Minnesota was executed in New York by a resident of that state, who, before it became due, moved to New South Wales, where he resided until the note was outlawed by the laws of that country.
Held: Not being a resident at any time of Minnesota, section 5145, Gen. St. 1894, has no application, and under section 5146 the note is not enforceable against him while temporarily in this state. Franklin H. Griggs, for appellant.
How, Taylor & Mitchell, for respondent.
Action upon the following promissory note:
‘$250.00. New York, August 10, 1891.
‘Five months after date, I promise to pay to the order of A. D. Drake, two hundred fifty dollars at his office in Drake Block, St. Paul, Minn. Value received, with interest at 8 per cent.
Geo. L. Bigelow.'
At the time of the execution and delivery of the note, respondent was a resident of New York, where he remained until November, 1891, when he moved to New South Wales, arriving in February, 1892, and continuously residing there until April, 1899, when he went to Honolulu, where he has since resided. Appellant was a resident of St. Paul, Minn., at the time of the execution and delivery of the note and until 1900, since which time he has been a resident of the state of Oregon. The summons in this action was served on respondent September 24, 1900, while temporarily in Minnesota, and he defends upon the ground that the note was barred by the statute of limitations.
Appellant proceeds upon the theory that the cause of action accrued within the state of Minnesota, and that within section 5145, Gen. St. 1894, the statute did not run during the time respondent was without the state. Section 5145 provides two certain exceptions when the statute shall not run: First. When a resident of this state is temporarily out of the state at the time the cause of action accrues against him, the time of his absence is not taken into consideration, and the statute commences to run from the time of his return. Second. If, when a cause of action has accrued against a resident of this state, he then departs therefrom, and resides out of the state, the statute does not commence to run until after his return. The first case applies to a resident only temporarily absent, and the second to a resident who goes away with no intention of returning. Respondent does not come within either of these exceptions. He was not a resident of Minnesota at any time, and the cause of action did not accrue within this state simply because it was made payable here. The note had its origin in the state...
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Eliseuson v. Frayseth, 42555
...Glover, Supra, stand for the proposition that § 541.13 tolls the statute of limitations as to nonresident defendants. In Drake v. Bigelow, 93 Minn. 112, 100 N.W. 664, a note made payable in Minnesota was executed in New York by a resident of that state, who, before it became due, moved to N......
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